Disqualified candidate for sheriff seeks delay of vote count

LITTLE ROCK — A man who was disqualified as a Republican candidate for Cleburne County sheriff asked the state Supreme Court on Monday to delay the counting of votes in the race.

Josh Johnston also asked the Supreme Court to stay a Cleburne County circuit judge’s ruling that he is not qualified to run because of a 19-year-old misdemeanor conviction for hot checks.

Circuit Judge Tim Weaver issued the ruling May 8 in a lawsuit filed by two other Republican candidates for the office, Brian Haile and Don Sims. They alleged that the conviction disqualified Johnston under Article 5 of the Arkansas Constitution, which states that a person convicted of an “infamous crime” is not eligible for public office in the state.

Weaver agreed and ordered that votes cast for Johnston not be counted.

On Monday, Johnston’s attorney, Dan Greenberg, filed a petition with the Supreme Court arguing that early voting for Tuesday’s primary had been taking place for three days before the judge made the ruling, so the issue should have been ruled moot.

He noted that last week the state Supreme Court ruled that an appeal by a disqualified candidate for a circuit judge position, Valerie Thompson Bailey, was moot because early voting had begun.

Greenberg also argued that Article 5 prohibits a person convicted of an infamous from holding office, not from being a candidate for office, and that the distinction is important in Johnston’s case because his record will be sealed by the time a winner is determined in the November general election.

He further argued that Johnston’s offense was not an infamous crime because it lacked malicious intent.

“It is a fact of life that one can, by mistake, write a check without sufficient funds in a checking account to cover it,” Greenberg wrote in the petition.

Johnston is seeking an order from the high court delaying the counting and certification of votes in the primary race for about a week to give the court time to give expedited consideration of his appeal of the circuit judge’s ruling.

A lawyer for Haile and Sims filed a response Monday arguing that the issue was not moot when Weaver ruled on it because the election had not happened yet — but that Johnston’s appeal is about to become moot.

“Appellees contend that appellant Johnston’s appeal is untimely and it will be rendered moot after tomorrow’s election,” lawyer Melanie Grayson wrote in the response.

Grayson also argued that a candidate’s eligibility for office is based on the date of filing for the office, not the date of taking office; that sealing a criminal record does not restore eligibility for office; and that in pleading guilty to violating Arkansas’ hot check law by writing four bad checks, Grayson pleaded guilty to doing so with an intent to defraud.

Also seeking the GOP nomination for Cleburne County sheriff is Richard Swain. The Democratic candidates are Jeff Bittle and Bob Sherrill. Sheriff Marty Moss is not seeking re-election.